What is an Indictment?

SQ Attorneys

Donald Trump has been indicted by the grand jury and is now set to be arraigned on Tuesday. So what is an indictment and how does it differ from a criminal complaint filed by a prosecutor? What is the burden of proof for obtaining an indictment? And do federal indictments differ from those in state courts?

The 5th Amendment to the U.S. Constitution requires the federal government to seek an indictment from a grand jury in order to prosecute someone for a felony or “otherwise infamous” crime. Since an indictment comes after a grand jury but typically before an arrest, it may be “sealed” for however much time is needed to prevent the defendant or other suspects from fleeing, destroying evidence, or otherwise evading justice.

The Fifth Amendment requirement does not extended to the state criminal charges, meaning that a state prosecutor may be able to bring felony charges under state law without first obtaining a grand jury indictment. However, many states follow a similar procedure for the prosecution of serious felonies (and even some misdemeanors).

When suspects are charged with lesser crimes (such as misdemeanors or lower-level felonies), the process generally begins with the prosecutor filing a criminal complaint, often following an arrest and only when there is probable cause for the charges. Some courts use preliminary hearings instead of grand juries to determine probable cause for more serious criminal charges, where judges decide whether there is enough evidence for the case to go to trial.

In contrast, a grand jury indictment is the product of sworn witness testimony and/or physical evidence, analyzed by a grand jury made up of local citizens. The grand jury’s role is to determine whether there is in fact probable cause for criminal charges, which generally carries much more weight than a simple criminal complaint. Grand juries are convened in secrecy and usually don’t involve judges or defense lawyers. If a grand jury does find probable cause, the prosecutor will file criminal charges. Under no circumstances does a grand jury indictment mean that someone is guilty of a crime, however. The defendant still has the right to argue their case at trial. In order to be found guilty, the prosecution must prove their case “beyond a reasonable doubt” – a much higher standard than probable cause.

Defendants may choose to waive their right to a grand jury if the prosecutor is offering an attractive plea bargain, but doing so amounts to an agreement with the prosecution that it has enough evidence to take the case to trial.

Former New York Court of Appeals Judge Solomon Wachtler once famously remarked that a prosecutor can get a grand jury to “indict a ham sandwich,” which isn’t too far from the truth. But this has more to do with the fact that prosecutors generally don’t call for grand juries until they’re confident in the strength of their case. While in many ways a formality, grand juries provide an opportunity for the defendant to challenge evidence and also provide a preview of what to expect at trial. Defense attorneys are not allowed in the courtroom, but may wait outside and field clients’ questions during breaks.

So what does it really take to get a federal indictment? To begin with, the 16-23 member grand jury does not have to decide unanimously. So if a simple majority decides that the case and evidence presented have merit, then it will return a “true bill” and go to trial. Since the grand jury is determining whether there is probable cause and not guilt, the standard of proof is much lower than for criminal trials.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer. SQ Attorneys can be reached at (425) 359-3791 and/or (206) 441-0900.

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